Major reform of EU Dual-Use legislation; Cyber-surveillance systems also controlled

10 October 2016

On September 28, 2016, the European Commission proposed to update the current EU dual-use regulation (no. 428/2009) for export control in order to modernize the system “to keep up with new threats and rapid technological changes”. A link to this proposed new legislation can be found below:

Under the proposed update of the EU dual-use regulation, the scope of what a dual-use item is, has been broadened with cyber-surveillance technology which can be used for the commission of serious violations of human rights or international humanitarian law, or can pose a threat to international security or the essential security interests of the EU.

The following definition of cyber-surveillance technology is provided:

“cyber-surveillance technology” shall mean items specially designed to enable the covert intrusion into information and telecommunication systems with a view to monitoring, extracting, collecting and analyzing data and/or incapacitating or damaging the targeted system. This includes items related to the following technology and equipment:

mobile telecommunication interception equipment;

intrusion software;

monitoring centers;

lawful interception systems and data retention systems;

digital forensics.

For more information we refer to the new Dual-Use category 10 in Annex 1 of the proposed legislation:

We note that this category 10 may be amended before implementation of the new legislation.

Expansion of “catch-all” scope

Under the current dual-use legislation, the “catch-all clause” – which entails that non-listed dual-use items can also be controlled – may only be invoked by the relevant authorities when there is reason to believe that the items to be exported are intended for use in connection with a biological, chemical, nuclear weapons or ballistic missile weapons program, or for use in the violation of an arms embargo. Under the proposed legislation this concept is broadened to include items that can be used “by persons complicit in or responsible for directing or committing serious violations of human rights or international humanitarian law in situations of armed conflict or internal repression in the country of final destination” as well for “use in connection with acts of terrorism”. It should be noted that various EU export control authorities are already reviewing multinationals’ Internal Compliance Programs at this level.

Optimization of EU export licensing architecture

With the proposed new dual-use regulation, the EU Commission aims to further harmonize licensing processes as well as reducing the administrative burden. For example, new authorizations are proposed for large projects to cover all export-related operations under a single export authorization. Furthermore, new general export authorizations are introduced for Low Value Shipments and intra-company transmission of software and technology. This should ultimately lead to less red tape.

What should companies do?

The Commission’s proposal will now be decided upon by the Council and the European Parliament in an ordinary legislative procedure. Therefore, the implementation date of this new legislation is currently unknown. However, in the meantime, it is of great importance that companies assess whether they have – in view of the new broader definition of dual-use items – products which fall under the scope of the new dual-use regulation since additional licenses might be required in the near future. Also, while phrases such as ‘serious violations of human rights’ and ‘acts of terrorism’ are relatively broad concepts, companies should be aware that the catch-all clause may be invoked more often by the relevant authorities. As this obviously results in uncertainty, it is of the utmost importance to have a mature Internal Compliance Program in place in order to limit this uncertainty and ensure compliance with the more stringent rules.

Questions?

We have specialists dedicated to national and international export controls and sanctions, ensuring that we are well-placed to help understand local and global operating requirements and answer any questions you may have in this respect.

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